Kumar v. State By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.06.2022

CORAM

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Crl.O.P.No.3308 of 2019 1.Kumar 2.Mary 3.Komala 4.Esthar ... Petitioners Vs.

1. State by, The Inspector of Police, W-22, All Women Police Station, Mylapore, Chennai - 600 004.

2. Sathya ... Respondents Prayer:

Criminal Original Petition filed under Section 482 of Criminal Procedure Code, to call for the records in C.C.No.2428 of 2018 pending on the file of the Metropolitan Magistrate - XVIII, Saidapet, Chennai and quash the charge sheet pending against the petitioners.

For Petitioners : Mr. B.S. Ramesh For Respondents : Mr. N.S. Suganthan, for R1 Government Advocate (Crl.Side) Mrs. Louisal Ramesh, for R2

O R D E R

The petition is filed by the accused 2 to 4 to call for the records in C.C.No.2428 of 2018 on the file of XVIII, Metropolitan Magistrate, Saidapet, Chennai and quash the same. 2.

The case against these petitioners came to be registered based on the complaint given by one Sathya alleging that she was married to Dilip Kumar on 29.01.2015 and blessed with a male child. The petitioners / accused 2 to 4, are inlaws of her husband-Dilip Kumar. Before marriage and after

marriage, there was demand for dowry from her husband and inlaws and the same was met by her parents inspite of that she was treated cruelly by them demanding more dowry. Later, she came to know that her husband is having an affair with a girl by name Epsiya and when she objected the illegal affair, her husband and in-laws tortured her and driven her out from the matrimonial home. By that time, she was conceived and when she informed about the same to her husband and in-laws, they did not care to meet her or spend for her delivery. The complaint was lodged to All Women Police Station about the conduct of the petitioners. The police called her husband and in-laws and adviced them to take her back. They demanded Rs.5 lakhs as dowry and refused to sever the relationship with Epsiya. The respondent-police registered the FIR dated 16.08.

2016 and after recording the statement of witnesses has filed final report against husband of the defacto complainant and her in-laws for the offence under Section 498(A) IPC and the same has been taken on file by the XVIII Metropolitan Magistrate, Saidapet in C.C.No.2428 of 2018. 3.

Learned counsel appearing for the petitioners submit that the real trouble between the defacto complainant and her husband is regarding the extra marital affairs. Both the husband and wife were making allegation against each other doubting their fidelity. Within few months of the marriage, the defacto complainant left the matrimonial home and living separately. Divorce petition has been initiated by Dilip Kumar before the Family Court, Chennai in O.P.No.2821 of 2016. On receipt of the summons in the said O.P., the present complaint has been lodged with false allegations roping the in-laws as accused.

4.

Learned counsel would further submit that the petitioners who are mother-in-law, father-in-law and sisters-inlaw of the defacto complainant are living separately and there was no demand of dowry either before marriage or after marriage. There is no element of cruelty either physically or mentally made out in the complaint or in the statement of witnesses. 5.

Learned counsel for the petitioner referring the divorce petition stated that serious allegations are made against the defacto complainant about her conduct and torture caused by her and her family member to Dilip Kumar. To prosecute the in-laws, there is no sufficient evidence. 6.

Learned counsel appearing for the defacto complainant would submit that the said Dilip Kumar, husband of the defacto complainant is a womanizer. He is having several extra marital affairs. When his affair with one Epsiya came to the knowledge of the defacto complainant, her husband and inlaws started treating her cruelly. The money received as dowry

from her parents were used by the petitioners. Therefore, the petitioners herein who have caused cruelty to the defacto complainant are liable to be prosecuted and punished. 7.

Learned Government Advocate appearing for the first respondent would submit that from the statement of witnesses and the material gathered during the investigation, enough evidence available for prosecution under Section 498(A) IPC. Therefore, though initially the complaint dated 16.08.2016 was registered for the offence under Section 498(A) IPC and Section 4 of Dowry Prohibition Act, on completion of investigation since material available is only to prosecute under 498A IPC, final report has been filed against the petitioners as well as the husband of the defacto complainant. Hence, the petition to quash is liable to be dismissed. Section 498(a) IPC reads as below:- "498-A. Husband or relative of husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."

As per the Section, not only the husband but also the relatives of the husband who subject, any women to cruelty shall be prosecuted. The explanation to the term "cruelty" indicates that such cruelty may be either mentally or physically. 8.

On reading the complaint, though there is allegation of demand of dowry, the core allegation is the extra marital affair of Dilip Kumar which has forced the defacto complainant to leave the matrimonial home. Though some counter allegations are found in the divorce petition, imputing immorality about the defacto complainant, these facts are to be tested during the course of trial, before the family Court.

9.

As far as the criminal prosecution is concerned, what is contended in the complaint and the statement of listed witnesses are against petitioners 2 to 4 are vague allegations of demand of dowry, without any specific incidents. Whereas against Dilip Kumar and his father, Kumar who is the first petitioner herein if the statement found to be try, they both will be held guilty and convicted. For the said reason, the criminal case against the petitioners 2 to 4 who are accused 3 to 5 in C.C.No.2428 of 2018 alone is quashed. The trial against A1 and A2 who are the husband and father-in-law of the defaco complainant shall proceed.

10.

In the result, petition to quash is dismissed against first petitioner/A2. Petition to quash is allowed in respect of A3 to A5 who are petitioners 2 to 4 herein. The trial Court is directed to complete the trial preferably within a period of six months from the date of receipt of copy of this order. Accordingly, this criminal original petition is partly allowed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar AT To

1. The XVIII, Metropolitan Magistrate, Saidapet, Chennai.

2. - Do through The Chief Metropolitan Magistrate,Chennai.

3. The Inspector of Police, W-22, All Women Police Station, Mylapore, Chennai - 600 004.

4. The Public Prosecutor High Court, Madras - 104.

+1cc to Mr. B.S. Ramesh, Advocate, S.R.No.35709 +2cc to Mrs. Louisal Ramesh, Advocate, S.R.No.35432 Crl.O.P.No.3308 of 2019 KK(CO) CT/01/07/2022